Software Freedom Law Center and Conservancy

Before I start, I would like to make it clear that the below is entirely my personal view, and not necessarily that of the GNOME Foundation, the Debian Project, or anyone else.

There’s been quite a bit of interest recently about the petition by Software Freedom Law Center to cancel the Software Freedom Conservancy’s trademark. A number of people have asked my views on it, so I thought I’d write up a quick blog on my experience with SFLC and Conservancy both during my time as Debian Project Leader, and since.

It’s clear to me that for some time, there’s been quite a bit of animosity between SFLC and Conservancy, which for me started to become apparent around the time of the large debate over ZFS on Linux. I talked about this in my DebConf 16 talk, which fortunately was recorded (ZFS bit from 8:05 to 17:30).

 

This culminated in SFLC publishing a statement, and Conservancy also publishing their statement, backed up by the FSF. These obviously came to different conclusions, and it seems bizarre to me that SFLC who were acting as Debian’s legal counsel published a position that was contrary to the position taken by Debian. Additionally, Conservancy and FSF who were not acting as counsel mirrored the position of the project.

Then, I hear of an even more confusing move – that SFLC has filed legal action against Conservancy, despite being the organisation they helped set up. This happened on the 22nd September, the day after SFLC announced corporate and support services for Free Software projects.

SFLC has also published a follow up, which they say that the act “is not an attack, let alone a “bizarre” attack“, and that the response from Conservancy, who view it as such “was like reading a declaration of war issued in response to a parking ticket“. Then, as SFLC somehow find the threat of your trademark being taken away as something other than an attack, they also state: “Any project working with the Conservancy that feels in any way at risk should contact us. We will immediately work with them to put in place measures fully ensuring that they face no costs and no risks in this situation.” which I read as a direct pitch to try and pull projects away from Conservancy and over to SFLC.

Now, even if there is a valid claim here, despite the objections that were filed by a trademark lawyer who I have a great deal of respect for (disclosure: Pam also provides pro-bono trademark advice to my employer, the GNOME Foundation), the optics are pretty terrible. We have a case of one FOSS organisation taking another one to court, after many years of them being aware of the issue, and when wishing to promote a competing service. At best, this is a distraction from the supposed goals of Free Software organisations, and at worst is a direct attempt to interrupt the workings of an established and successful umbrella organisation which lots of projects rely on.

I truly hope that this case is simply dropped, and if I was advising SFLC, that’s exactly what I would suggest, along with an apology for the distress. Put it this way – if SFLC win, then they’re simply displaying what would be viewed as an aggressive move to hold the term “software freedom” exclusively to themselves. If they lose, then it shows that they’re willing to do so to another 501(c)3 without actually having a case.

Before I took on the DPL role, I was under the naive impression that although there were differences in approach, at least we were coming to try and work together to promote software freedoms for the end user. Unfortunately, since then, I’ve now become a lot more jaded about exactly who, and which organisations hold our best interests at heart.

(Featured image by  Nick Youngson – CC-BY-SA-3.0 – http://nyphotographic.com/)

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9 Responses

  1. Colby Russell says:

    Please don’t succumb to the obnoxious use of the word “optics” to mean “appearances”. It reeks of thesaurus ink, and was so obviously born of TV and print pundits who try to add more gravity to their messages than they actually contain. So when it bleeds over into forums that aren’t as a rule so focused on the same trend-chasing, memetic me-tooism, it causes cringe.

    • Neil McGovern says:

      Well, perhaps it is my political background that influences my word choice, but I would point out it’s been in use as a slightly different version of appearances for at least the last 40 years…

      • Colby Russell says:

        If “appearances” is what you mean, it’s almost definitely a better idea just to say that. “Optics” adds nothing, but takes away enough (non-zero is enough) to make it worth avoiding.

    • Jono Bacon says:

      Your optics on his use of the word “optics” seem foggy.

  2. paulv says:

    Matthew Garrett and Karl Fogel also have written interesting posts about the controversy.

  3. Joshua Gay says:

    It is not clear to me that there is any contradiction between the SFLC statement and the FSF’s statement on the matter of Linux and ZFS. That is, I can’t really find how the SFLC and FSF differ in their interpretation GPLv2 and CDDL. Can you quote specific text to show how they differ?

    From my reading (which was extensive when each was published), both statements argue that:

    * CDDL and GPLv2 are incompatible licenses and creating a combined work distributed under both the terms of the CDDL and GPLv2 would violate the terms of GPLv2;
    * that you can’t comply with the terms of the GPL under Section 4(a) and 4(b) of GPLv2 if you distribute binaries of ZFS for Linux because the complete and corresponding source of ZFS for Linux would itself be a violation of the GPL
    * the joint copyright holders of Linux could grant an exception that would permit distributing ZFS and Linux binaries, and
    * without a clear statement by the joint copyright holders of Linux granting such an exception, distros and others should avoid distributing ZFS and Linux binaries.

    There is arguably a subtle difference in the discussion of binaries. The SFLC makes a subtle argument that because the CDDL permits distribution of binaries under the terms of the GPL, that the courts would not treat the distribution of binaries as a violation of the GPL, but instead, they would focus on the distribution of the complete and corresponding source of the binary as being the actual act of violating the terms of the GPL. It would seem that the SFLC’s argument about binaries not being the violation in and of themself is a useful interpretation, because it means that individuals re-distributing ZFS for Linux under GPLV2 Section 4(c) would not necessarily immediately and forever lose their right to distribute Linux in the future. The FSF does not clarify in their statement if they believe that 4(c) re-distributors of ZFS for Linux have in fact lost their rights to distribute Linux or if they agree with the SFLC argument that the violator would be the entity responsible for distributing the complete and corresponding source of the binary.

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